What is a contested estate? How to limit the risks of a contested estate after death
Contested estates can add an extra layer of complexity to an already difficult time of grieving for a loved one. When disputes arise over the distribution of assets, it can lead to both financial and emotional consequences for the family left behind. Lucy Wilson in our wills and estates team, explains exactly what constitutes a contested estate, and how individuals can minimise the risks of such disputes occurring after death.
A contested estate refers to disagreements or legal challenges that arise amongst family members or beneficiaries regarding the distribution of the deceased’s assets as per their will.
Under the inheritance rules in England and Wales, a person is free to leave their estate to whomever they wish, and no law provides a person must include any of their family members or spouse in their will.
However, contrary to this testamentary freedom, statutory provisions under the Inheritance (Provision for Family and Dependents) Act 1975, often referred to as “The Inheritance Act”, provides protection for dependants of the deceased meaning they can bring a claim against the estate when the will doesn’t provide them with a reasonable amount of inheritance. A ‘dependant’ who can bring a claim can include spouses, civil partners, children, including stepchildren, unmarried former spouses, a cohabiting partner of over 2 years, and any person who is in some way financially dependent on the deceased.
Blended families, second marriages, and estrangement are all part of modern family dynamics which can give rise to disputes over the deceased’s estate, and ultimately lead to Inheritance Act claims being brought before the courts.
Many people do not realise that marriage revokes a will unless specific clauses are included to circumvent this rule. Keeping your will up to date will allow you to have control over who inherits your estate after death, instead of following the predetermined order under the Intestacy Rules, which may benefit a spouse or family member whom you never wished to receive a share of your estate and leave out an individual whom you would have otherwise wished to be included.
When choosing to deliberately exclude someone from your will such as a spouse or child, you may wish to include specific declarations in your will or store a Letter of Wishes alongside your will. This would not preclude an excluded individual from bringing an Inheritance Act claim but would provide a means of documenting and explaining to your executors, and the court should a claim be brought, why you have chosen to exclude that individual from your will.
The validity of a will can also be called into question based on various factors outlined in the Wills Act 1837, such as the testator’s capacity to make a will, undue influence, or lack of knowledge and approval. Even seemingly minor errors like spelling mistakes can be used to challenge the validity of a will, potentially leaving the estate intestate and subject to distribution according to the Intestacy Rules.
To mitigate these risks, seeking professional legal advice from solicitors specialising in wills and estate planning is crucial. A qualified solicitor can ensure that the will is executed validly and that the testator’s wishes are accurately reflected. They can also identify and address any potential risks of undue influence or disputes among family members and advise accordingly.
By instructing experienced solicitors, individuals can ensure that their will is legally valid, their wishes are clearly communicated, and their loved ones are adequately provided for. Ultimately, proactive estate planning and advice from a solicitor specialising in wills and estates can help minimise the likelihood of contested estates and ensure a smoother transition of assets after death.
Author: Lucy Wilson, wills and estates.
